Dooley v. Everett

Decision Date12 December 1990
Docket NumberNo. 01-A-01-9005CV-00185,01-A-01-9005CV-00185
Citation805 S.W.2d 380
PartiesRandy H. DOOLEY and Brenda Y. Dooley, Individually and as parents and next of kin on behalf of Brandon H.B. Dooley, a minor, Plaintiffs-Appellants, v. Leon E. EVERETT, M.D., Defendant, Revco Discount Drug Centers, Inc., and Revco D.S., Inc., Defendants-Appellees.
CourtTennessee Court of Appeals

John A. Day, Kim A. McMillan, Boult, Cummings, Conners & Berry, Nashville, Wayne F. Hairrell, Lawrenceburg, for plaintiffs-appellants.

Thomas C. Binkley, Jeffrey Zager, Trabue, Sturdivant & DeWitt, Nashville, for defendants-appellees.

OPINION

LEWIS, Judge.

The appeal in this case presents the issue of whether under the facts in the record there is a genuine issue of material fact regarding whether a pharmacist has a duty to warn a customer and/or the customer's physician of the potential interaction between two different prescription drugs written by the same physician on two different days and which are filled as written by the same pharmacist on different days.

The trial court held there was no duty, sustained defendants' Revco Discount Drug Centers, Inc. and Revco D.S., Inc.'s 1 motion for summary judgment and dismissed plaintiffs' complaint.

The pertinent facts are as follows:

Dr. Leon Everett, a family practice physician in Lawrenceburg, Tennessee, began treating the minor plaintiff Brandon Dooley in June 1985 when Brandon was three years old. Brandon was hospitalized in June 1985 for pneumonia and, during this hospitalization, Dr. Everett prescribed an asthma medication known as Theophylline. In January 1986, Dr. Everett diagnosed Brandon as suffering from asthma and again prescribed Theophylline for Brandon.

Theophylline is a prescription only medication used in the treatment of asthma and has a recommended therapeutic range of ten to twenty micrograms per milliliter. A blood serum level of less than ten micrograms per milliliter is considered of no therapeutic value. Serum levels in excess of twenty micrograms per milliliter present potential toxicity. Revco filled the Theophylline prescriptions prescribed by Dr. Everett at various times between 14 September 1987 and 23 December 1987. Dosages of Theophylline were increased from 150 mgs. twice a day to 200 mgs. three times a day by Dr. Everett.

On 17 December 1987, Dr. Everett prescribed Erythromycin for Brandon at 400 mgs. four times per day for a period of ten days. This prescription was filled by Revco on 17 December 1987. At the time Erythromycin was prescribed for Brandon, he was still taking 200 mgs. of Theophylline three times per day as per Dr. Everett's orders.

On 23 December 1987, Brandon suffered cerebral seizures as the result of toxic levels of Theophylline in his blood.

At the time Erythromycin was prescribed by Dr. Everett and the prescription was dispensed by Revco, the package insert for Erythromycin provided in pertinent part:

Recent data from studies of Erythromycin reveal that its use in patients who are receiving high doses of Theophylline may be associated with an increase of serum Theophylline levels and potential Theophylline toxicity. In case of Theophylline toxicity and/or elevated serum Theophylline levels, the dose of Theophylline should be reduced while the patient is receiving concomitant Erythromycin therapy.

At the time Revco filled the Erythromycin prescription, Revco did not warn or explain the potential for interaction to the plaintiffs. Also, Revco did not alert Dr. Everett of the potential interaction or possible effects of using Erythromycin concurrently with Theophylline.

Dr. Everett was familiar with the potential side effects resulting from the toxic serum levels of Theophylline in the blood. He knew these included nausea, vomiting and seizures.

The pharmacist on duty at the time Brandon's prescription was delivered did not know that Erythromycin could interact with Theophylline. He did not know that this combination of drugs posed a risk of serious injury to Brandon.

In opposition to Revco's motion for summary judgment, plaintiffs filed the affidavit of Roy E. Marcrom. Mr. Marcrom "received a Bachelor of Science Degree on Pharmacy" in 1971 and, in 1972, received a Doctor of Pharmacy Degree from the University of Tennessee. He has practiced pharmacy in Tennessee since his graduation and is presently the owner of Marcrom's Pharmacy in Manchester, Tennessee.

In his affidavit Mr. Marcrom states that "Pharmacy is a profession that requires considerable knowledge about drugs and how they affect the human body;" that "pharmacists recognize that there exists a standard of care applicable to the practice of pharmacy in [Tennessee];" that "there are certain duties and responsibilities generally accepted by the members of the pharmacy community;" that the "accepted standard of care of professional practice for the profession of pharmacy as they existed in Lawrenceburg, Tennessee, and similar communities in 1987" included that "pharmacies maintain a patient profile system" and that "the patient profile should be reviewed by the pharmacist prior to filling a new prescription for several purposes" including a determination of whether the new drug prescribed for the patient and presented for filling to the pharmacist interacts with any other drug currently ordered for the patient. He further testified:

[T]he standard of care also required the pharmacist alerted to the interaction to call the Erythromycin prescriber, alert him or her to the potential interaction, and/or advise the patient or patient's representative of the potential interaction and encourage him or her to (1) have his or her serum Theophylline levels monitored and/or (2) be alert for side effects of Theophylline toxicity. It is difficult to articulate what the standard of care requires of a pharmacist without knowing the exact circumstances under which the prescription for Ery-Ped was presented but, regardless of the circumstances, the pharmacist is required to alert the patient or patient's representative to the potential interaction.

Mr. Marcrom also testified that "there exists and did exist in 1983, 1984, 1985, 1986, and 1987, computer technology which was available to pharmacists to identify drug interactions in general and the Erythromycin and Theophylline interaction in particular."

Revco's motion for summary judgment was made on the sole basis that as a matter of law the pharmacist does not have a duty to warn his customer that there exists a potential drug interaction.

In order for Revco to prevail on its motion for summary judgment, it must establish that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.03.

In determining whether or not a genuine issue of fact exists in a summary judgment case, the trial court, and this Court on appeal, must look to all the evidence, take the strongest legitimate view of it in favor of the opponent of the motion and, allowing all reasonable inferences from it in his favor, discard all countervailing evidence. If then there is any dispute as to any material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. See Phillips v. Pittsburg Consol. Coal Co., 541 S.W.2d 411, 413 (Tenn.1976). Where a dispute exists as to any material fact or where there is merely uncertainty as to whether there may be a dispute, it is the duty of the court to overrule a motion for summary judgment. Dolan v. Cunningham, 648 S.W.2d 652 (Tenn.App.1982).

Revco insists that if this Court should find that Revco had a "duty to warn," the Court will be engaging in policy making which is a function of the legislature, rather than the courts. Still v. Baptist Hosp., Inc., 755 S.W.2d 807, 812 (Tenn.App.1988).

We agree that "policy making" is not a legitimate function of the courts. However, we respectfully disagree that this Court would be entering into the realm of policy making if it determines that summary judgment was not appropriate in this case.

It is axiomatic that three elements are necessary for the existence of a cause of action for negligence: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff which was proximately caused by the defendant's breach of a duty. (citation omitted.) 'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'

Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn.1985).

"[D]uty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do or must not do, is a question of the standard of conduct required to satisfy the duty. The distinction is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other.

W. Keeton, Prosser and Keeton on the Law of Torts § 53 (5 ed. 1984).

Legal duty means that which the law requires to be done or forborne to a determinate person or to the public at large and a correlative to a right vested in such person or the public at large. Dabbs v. Tennessee Valley Auth., 194 Tenn. 185, 250 S.W.2d 67 (1952). A duty rests on everyone to use due care under the attendant circumstances, and negligence is doing what a reasonable and prudent person would not do under the given circumstances. Dixon v. Lobenstein, 175 Tenn. 105, 132 S.W.2d 215 (1939).

Duty in the context of a case where negligence is alleged raises the question of whether the defendant is under any obligation required by law for the...

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